Working Your Womanhood: Cross-Examination

by Tyeesha Dixon

Ever wonder if the rumors that male law students get cold-called more frequently than female students is actually true? Or whether firm hiring partners will actually dock points if you wear pants to an interview?  “Working your Womanhood” highlights common (and not-so-common) issues that women face in the legal arena, and effective ways that women have coped with these issues.  From the classroom to the workplace, I’ll explore the experiences of women in the field who have dealt with balancing their femininity with their legal careers.

Effective cross-examination takes particular and specialized skill—a delicate balance of aggressive questioning and knowing where to draw the line with a potentially sympathetic witness.  But do female attorneys face an extra hurdle to overcome when it comes to giving a good cross—just because they’re women?  Two experienced female litigators–Mary Kennedy and Esme Caramello–give their take on the topic:

Q:  Have you encountered challenges in conducting cross- examinations that you would consider specific to women litigators?

Kennedy: I do not think I have encountered challenges that I would consider specific to women litigators but I could have been oblivious to gender-based treatment.  I was lucky enough to get most of my litigation experience at the Public Defender Service in Washington D.C.   PDS was a wonderful place for any lawyer to learn and grow and perhaps was particularly special for women attorneys.  The entire time I was at PDS, the agency was headed by a woman.  My first trial chief was Michele Roberts, a wonderful mentor, role model and now friend.  She is the best trial attorney I know and I was fortunate to learn from her.   My training director was Kim Taylor-Thompson, another incredibly talented, smart and strong attorney.  I was surrounded by examples of effective lawyers who were women.

Caramello:  Women can find it more difficult to assert power over a witness without alienating the trier of fact (or the witness).  We can also have a harder time finding positive role models, since the most well-known trial lawyers, real and fictional, have predominantly been men.  In some cases, judges or jurors may have lower expectations for women lawyers than they do for male lawyers.  All of these challenges, however, can be overcome by effective advocacy over the course of a trial.

Q:  Do you feel that jurors perceive you differently than they do male attorneys?

Kennedy: I definitely think that jurors perceive me differently from male attorneys and that can work for me in some cases and against me in others.  Jurors’ perception of me are as random as human nature.

Caramello: We can’t avoid the fact that men and women are perceived differently by jurors and everyone else.  A hostile question or tone by a woman might be perceived as shrill or mean, while the same question by a man might be perceived as smart and powerful.  On the other hand, women can be perceived as more appropriate questioners for certain witnesses, like those who seem vulnerable (because of the societal expectation that women are more caring) or bullying (because the jury may sympathize with a female lawyer who is seen to be under attack).  The key is being aware of the stereotypes and trying to adapt while not overplaying their importance.  A well- prepared, skillful woman will fare just as well as a similarly situated man.

Q:  Cross-examination naturally requires aggressive questioning.  Over the course of your career, how have you dealt with stereotypes that aggressive female lawyers are bitchy?

Kennedy: With charm and grace.

Caramello: Refusing to be a pushover and being “bitchy” are two very different things, so finding a strong, assertive style somewhere in the middle is key.  For me, this means keeping my emotions in check, not getting irritated at the witness, and making sure my face and posture communicate a sense of calm.  Any lawyer, regardless of gender, can use a calm, straightforward style to best most hostile witnesses, who themselves lose credibility as they squirm and fight.

Q:  How did you develop your personal cross-examination style?   Why do you think it has proven effective?

Kennedy:   I LOVE cross-examination.  By the time you reach the courtroom, you know your case backwards and forwards.  I work and rework each cross-examination before the trial starts and as the trial progresses.  By the time I stand up to face the witness, I know exactly the points I hope to make.  The better prepared I am, the better I am able to respond to the witness’s answers, including the witness’s tone, attitude and demeanor.  Over the years, I have learned that I am much more effective when I keep things short, simple and sincere.  The louder the witness or opposing counsel, the quieter I try to be.  When I show the fact-finder that I will be fair to the witness or other lawyer, I gain credibility.

Caramello: I learn well from watching other people, especially other women lawyers, in action. I also highly recommend the mock trial programs run by NITA and many bar associations.  They provide a great opportunity to experiment with different styles in a relatively low stakes environment

QIf you could give one tip to young women litigators regarding cross-examination, what would it be?

Kennedy:   I firmly believe the best way to control a witness is with short, short, short questions.

Caramello: Find your own style and stick with it with lots of practice.  There is no single right way to do a cross-examination.  If you are comfortable, you will connect with the witness and the trier of fact and be effective at using the examination to tell your client’s story.

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Mary Kennedy is Trial Skills Counsel at Arnold & Porter LLP.  Ms. Kennedy has over 25 years of litigation and training experience. Before joining Arnold & Porter, Ms. Kennedy served as the Litigation Trial Mentor at Finnegan, an intellectual property firm in Washington DC.   Prior to that, she was the Director of the Federal Defender Training Group.  She spent 11 years at the Public Defender Service for the District of Columbia (PDS), where, during her last four years, she was Training Director.  Ms. Kennedy has taught full-time at the Georgetown University Law School Criminal Justice Clinic, and has been an adjunct professor at George Washington Law School.  Ms. Kennedy now teaches trial skills to the Prettyman Fellows.

Esme Caramello serves as Deputy Director for the Harvard Legal Aid Bureau, where she also works as a Clinical Instructor teaching trial advocacy skills and ethics to second and third year law students in the classroom and in context in the Bureau’s poverty law practice.   After graduating from Harvard Law School in 1999, Esme moved to San Francisco to work as a litigation associate at Baker & McKenzie.  She then clerked for U.S. District Court Judge Charles P. Kocoras in Chicago. After serving five years as a Chesterfield Smith Community Service Fellow and litigation associate at Holland & Knight, Caramello joined the Housing Unit at Harvard Law’s WilmerHale Legal Services Center, and then Suffolk Law School’s Housing and Consumer Protection Clinic in Boston.

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